A Renewed Focus on Anti-American Discrimination in the Workplace
The United States Equal Employment Opportunity Commission (“EEOC”) recently issued a Technical Assistance Document - Discrimination Against American Workers is Against the Law – and signaled its intention to focus on discrimination against American employees in the workplace. In light of the agency’s action, employers should know what their obligations under the law are and proactively should ensure that their policies, programs, and procedures comply with the law to avoid charges of discrimination.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against applicants and employees in connection with all aspects of the employment relations (e.g., hiring, compensation, promotion, etc.) on the basis of certain characteristics. One of those protected characteristics is national origin, which historically has included applicants and employees who are American. In issuing the Technical Assistance Document, the EEOC emphasized that Title VII applies to all workers, which includes American workers, and underscored that certain business reasons to prefer foreign workers cannot condone national origin discrimination.
In terms of prohibited discriminatory practices that American workers may encounter, the EEOC listed the following examples:
Discriminatory Job Advertisements that express a preference or a requirement for applicants from a particular country or with a particular visa status; e.g., H-1Bs preferred or only H-1Bs.
Disparate Treatment that manifests in the form of terminating American workers instead of foreign workers, making it more difficult for American workers to be selected in a recruitment process, or paying foreign workers more than American workers.
Harassment of American workers based on their national origin.
Retaliation against workers who oppose or object to any practices that favor foreign workers or disfavor American workers.
With respect to the common business reasons that cannot justify national original discrimination against American workers, the agency flatly rejected the following grounds:
Preferences of customers or clients;
Lower costs of labor; and
Beliefs that workers from one or more national origin groups are “more productive” or possess a better work ethic than another national origin group.
In the wake of this Technical Assistance Document, the agency’s intensified focus on anti-American bias, and the legal, financial, and operational impact of a charge of discrimination, employers should take the following steps:
Review and, where necessary, revise all policies, programs, and practices, which include external communications, job advertisements, etc.
Use legitimate, objective, and non-discriminatory requirements for all employment decisions.
Document the deliberation process and tie all decisions to lawful reasons.
Educate staff in Human Resources, Marketing, and other departments on national origin discrimination.
Restrict data collection and access to data regarding applicants’ and employees’ national origin.
Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com) and Junior Partner Allison Bustin (allison.bustin@pierferd.com), Employment, Labor, and Benefits Department, are available to counsel and to address any compliance with equal employment opportunities and claims of national origin discrimination.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2026 Pierson Ferdinand LLP.
